R(on the application of Natalia Heritage)v Secretary of State for the Home Department and First-tier Tribunal IJR [2014]UKUT 00441(IAC)

Mailing or Enclosure

R(on the application of Natalia Heritage)v Secretary of State for the Home Department and First-tier Tribunal IJR [2014]UKUT 00441(IAC)

The facts: The claimant was a Russian national who initially had leave to remain in the UK as a spouse. She divorced her husband and was subsequently granted leave outside the rules to enable her to have access to her two British sons, both young adults in education in the UK. The claimant made an in-time application for further leave to remain, however her credit card payment was rejected and the application refused for want of payment of the fee. Her subsequent out-of-time application was rejected on the basis that she was an overstayer, with no right of appeal. Article 8 consideration outside the Rules was not considered, nor was EU law. The claimant applied for judicial review. Upon the grant of permission, the Secretary of State issued a supplementary decision letter considering Article 8 and again refusing to grant leave.

The decision: Both decisions of the Secretary of State were quashed. The Court commented on the “moving target” practice, noting that it has become commonplace for the Secretary of State to remake decisions during the course of litigation. The Court considered that a flexible approach was appropriate, but cautioned that there could be costs implications if the Secretary of State acts unreasonable in reissuing a decision.

In respect of the core issues, the Court was persuaded that the Secretary of State’s failure to consider the EU law dimension rendered the decision Wednesbury unreasonable. The claimant’s former spouse had worked in other EU states during their marriage, before returning to live in the UK. The claimant thus had previously had an EU law right of residence (Surinder Singh), as well as by virtue of being the primary carer for her EEA national sons who were still in education (Alarape).  The EU law dimension to the case had been ignored by the Secretary of State and was relevant to Article 8. There was no requirement for the claimant to make reference to this in her application; EEA rights of residence exist even if not asserted.

The Court was of the view that family life did exist in this case, despite the fact that the claimant’s sons were adults, because they were still in education, had some (minor) psychological difficulties and that overall there was evidence of dependence on their mother. The Respondent’s decision that the family ties were not exceptional was based on some flawed reasoning – for example asserting that the sons could be cared for by their elderly and unwell grandparents.

The Court rejected the claimant’s argument relying on Zambrano – while it accepted that the key issue was dependency, not whether the relevant children were adults or not, the Court held that as it could not be shown that the sons would be forced to leave the UK / EEA if their mother had to, Zambrano did not avail the claimant; however she had succeeded in showing the relevant decisions to be unlawful by virtue of the failure to consider the EU law dimension and flawed reasoning on Article 8; both decisions were quashed.

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